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Why Legal History Matters 293 WHY LEGAL HISTORY MATTERS Jim Phillips* This is the text of Professor Phillips' Salmond Lecture delivered at the Victoria University of Wellington Law Faculty on 24 June 2010. In it Professor Phillips makes the case for why legal history matters both for lawyers and historians and argues for a continued contextual approach to the study of legal history. I INTRODUCTION Chief Justice, distinguished guests, ladies and gentlemen. I am greatly honoured by the invitation to deliver the Salmond Lecture. I have long known of John Salmond as the author of one of the leading early twentieth century textbooks on torts, and as someone who also wrote about legal history. What I had not known before I worked on this lecture was what a remarkable and varied career he had, as legislator, diplomat and judge as well as legal scholar.1 It is indeed humbling to be giving a lecture named after such a towering figure. John Salmond's work on torts also made him a significant figure in the legal history of his period, something I will return to later. I like to think he would have approved of someone being asked to reflect generally about legal history and its importance. Whether he would have approved of the content of my remarks is another question. When I told a friend of mine about my visit here, to talk about why legal history matters as a prelude to a legal history conference, she suggested that New Zealand is a long way to go to preach to * Professor, Faculty of Law, Department of History, and Centre of Criminology, University of Toronto; Editor-in-Chief, Osgoode Society for Canadian Legal History. This is the revised text of the John Salmond Lecture, delivered at the Victoria University of Wellington, 24 June 2010. I am deeply grateful to the Law Foundation of New Zealand for its support of this lecture, the Leading Cases Conference, and the Lost Cases project. For more on the Lost Cases project see the introduction to this issue and the other essays in the volume. I thank Jeffers Lennox for research assistance, the Osgoode Society for Canadian Legal History for financial assistance, and Philip Girard, Bradley Miller, and Mary Stokes for comments on previous versions of the lecture and this article. 1 For Salmond generally see Alex Frame Salmond: Southern Jurist (Victoria University Press, Wellington, 1995); and Alex Frame "Salmond, John William 1862-1924" (2007) Dictionary of New Zealand Biography <www.dnzb.govt.nz>. His major text on torts was The Law of Torts. A Treatise on the English Law of Liability for Civil Injuries, first published in London by Stevens and Haynes in 1907. It has run to 21 editions, the latest appearing in 1996. For his legal history work see principally Essays in Jurisprudence and Legal History (Rothman, Littleton (Colorado), 1891). 294 (2010) 41 VUWLR the converted. I may or not be preaching to the converted, but I do think it is useful for those who do legal history to reflect on these kinds of questions from time to time. Perhaps consumed by our immediate research projects, we do not do this enough.2 I have been writing and teaching legal history for twenty-five years, and in that time I have often defended and defined my subject - but usually in short conversations or in slightly less than short introductions to teaching the subject. I am therefore delighted to have the opportunity to talk at some length on the topic, and to do so to such a varied audience of academics, judges, and practitioners. I will be speaking principally as an academic, but not always with the same audience in mind. I teach law in a law school, and am convinced that history is a vital part of legal education. We are trying to teach law students not only analytical skills and substantive knowledge, but also a deeper understanding of the nature of law. And if I am right that legal developments cannot be separated from other historical trends then a sense of history is vital to understanding the law, even (or perhaps because), it tends to highlight the limitations of law. But some of my remarks will also be directed at historians. I not only teach law in a law school, I also work with history doctoral students and publish some of my work in standard historical journals. Some understanding of law is an essential part of civic knowledge and awareness for any educated layperson, and a greater appreciation of legal developments can particularly enrich historians' work, both by opening new avenues of research and also by offering a deeper understanding of the work that historians do in apparently non-legal fields. If we define legal history broadly, as I will do, to include not just high courts and general principles of doctrine but also the law made by legislatures, law's ideological role, law as practised at the micro level, and popular understandings of law and justice, then many historians already do legal history, albeit perhaps without knowing it. Legal history is everywhere, to a greater or lesser degree, for law surely is, as E.P. Thompson once famously said, imbricated, overlapping with everything else.3 In some respects, of course, the answer to the question of why legal history matters is the same as the answer to the question of why history of any kind matters. That is, it is always better to understand not just the shape that some aspect of our present world takes, but also how it got that way. Moreover, our history is more than an explanation of past developments, it is an essential form of understanding of the world around us, because it is invariably still with us, aspects of it remain embedded in every part of our society. But I want to go beyond the importance of history generally and ask why in particular legal history matters, why it is especially important to have an historical approach to law. I will organise my remarks around what I see as four principal reasons why legal history especially 2 There are some exceptions which I have found useful. See for example John McLaren "The Legal Historian, Masochist or Missionary? A Canadian's Reflection" (1994) 5 Legal Educ Rev 67; KJM Smith and JPS McLaren "History's Living Legacy: An Outline of 'Modern' Historiography of the Common Law" (2001) 21 LS 251 at 311-324; Jeremy Webber "The Past and Foreign Countries" (2006) 10 Legal Hist 1; Robert M Jarvis and others "Contextual Thinking: Why Law Students (and Lawyers) Need to Know History" (1995-1996) 42 Wayne L Rev 1603. 3 EP Thompson Whigs and Hunters: The Origin of the Black Act (Allen Lane, London, 1975) at 261. WHY LEGAL HISTORY MATTERS 295 matters: that legal history teaches us about the contingency of law, about its fundamental shaping by other historical forces; that legal history shows us that the while law is shaped by other forces, it can be at the same time relatively autonomous, not always the handmaiden of dominant interests; that legal history, perhaps paradoxically, frees us from the past, allows us to make our own decisions by seeing that there is nothing inevitable or preordained in what we currently have; and that legal history exposes the presence of many variants of legal pluralism in both the past and the present. There is some overlap between the four, and others may take issue with my taxonomy. Some, if not all, of my answers will be quite familiar to many of you, but I hope that like me you will find it useful to have them discussed at some length. Lectures like this, making general theoretical assertions, can be a bit dry, and I have tried to illustrate all my points with examples derived from a number of different areas of law and jurisdictions. My examples tend to be North American, because that is the legal history I know best. Some of them come from my own work, for which I make no apology. I have always said that when you get a chance for shameless self-promotion you should take it. II THE CONTINGENCY OF LAW First, and in some respects most importantly in the context of legal education, legal history teaches us about the contingency of the law, about the fact that law is not a set of abstract ahistorical and universal principles, it does not exist in a vacuum. Rather, it is formed by, and exists within, human societies, and its forms and principles, and changes to them, are rationally connected to those particular societies. At the risk of going over some very familiar ground, I think it is useful, both to illustrate this point about contingency and to show how relatively new this idea is, to contrast the legal history we are familiar with today with the situation prior to the 1970s.4 As English legal historian David Sugarman, has recently put it, prior to the 1970s English legal history in the twentieth century was narrow and parochial, "preoccupied with the origins of legal doctrines and institutions, emphasizing continuity and de-emphasizing change and contingency."5 Its subjects were limited to courts, judges and legal doctrine, its preoccupations were in the "origins" of those subjects, its explanatory tools mostly internal to the legal system itself, and it emphasised continuity with the past, albeit a past that ended usually with the 1535 Statute of Uses although which 4 What follows is necessarily a brief and rather crude summary of a large historiographical change, and it is not possible here to make all of the qualifications that one would want to make.
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